Constitutional Law
Quasipublic Executives
115 Yale L.J. 2254 (2006) In this Essay, we first observe the rise of what we call "quasipublic executives": both "nominally private executives," that is, private executives in charge of public functions such as corrections, education, and national defense; and "nominally public executives," that is, public executives who have assumed private characteristics such as insulation from electoral control mechanisms. We proceed to argue that control mechanisms for quasipublic executives should be drawn from both constitutional law and corporate law, broadly interpreted. Constitutional law and corporate law both face the problem of controlling executives but use radically different control mechanisms to do so. This difference, we argue, can be justified only by differences in the institutional settings of the executives governed by each body of law or in the functions with which they are charged. But because quasipublic executives, whether nominally public or nominally private, operate in private institutional settings and perform public functions, this justification for the use of different control mechanisms cannot apply to them. Further, we argue that the law's failure to draw control mechanisms from both fields is symptomatic of a larger doctrinal distortion. Under this distortion, the solutions that the law offers to social problems are often driven more by the doctrinal field to which those problems are assigned than by functional considerations.
Rational War and Constitutional Design
115 Yale L.J. 2512 (2006) Contemporary accounts of the allocation of war powers authority often focus on textual or historical debates as to whether the President or Congress holds the power to initiate military hostilities. In this Essay, we move beyond such debates and instead pursue a comparative institutional analysis of the relationship between Congress and the President on war powers. More specifically, we ask which war powers system would best enhance the effectiveness of the United States in making decisions about war and peace? First, we suggest that the argument that a Congress-first approach will have clear political accountability and accuracy advantages over a President-first approach rests on questionable empirical and theoretical assumptions. Second, we turn to the international dimension and draw on one of the few facts considered to be close to an empirical truth in international relations: Democracies do not tend to go to war with each other. Here, we explore the relationship between the regime type of the adversary and the war powers system best suited to combating it. We argue that if the United States were involved in a dispute with another democracy, involving Congress could help facilitate a peaceful resolution by allowing the United States to signal more effectively its intentions. If, however, the United States were involved in a dispute with a nondemocracy or a terrorist organization, a unilateral presidential approach would make more sense because such an opponent is less likely to have the proper incentives to respond to the signal conveyed by congressional participation. Finally, we conclude that only an approach that vests exclusively in the President the discretion to seek ex ante congressional authorization would permit the United States to adapt its domestic decision-making structure to the exogenous demands of the international system.
Setting the World Right
115 Yale L.J. 2350 (2006) Five years after September 11, 2001, America's response to that traumatic day has effectively turned the world of American public law upside down. Claiming that a global war on terror calls for an entirely new legal paradigm, the Bush Administration and its supporters have pressed for a revamped constitutional and international vision that champions the supremacy of both executive and American unilateralism. Recently, executive power advocates have even begun to claim that in a crisis, executive action validates itself. This Essay reviews this cycle of history and argument and describes what impels executive power in this direction. The Essay argues that the United States Supreme Court's landmark opinion in Hamdan v. Rumsfeld has begun setting the world of public law right and explains how Hamdan undermines scholarly claims of those who still urge the need for enhanced executive authority in national security affairs.
The President's Completion Power
115 Yale L.J. 2280 (2006) This Essay identifies and analyzes the President's completion power: the President's authority to prescribe incidental details needed to carry into execution a legislative scheme, even in the absence of congressional authorization to complete that scheme. The Essay shows that the completion power is a common explanation for very different presidential powers, including the administration of a presidential statute, prosecutorial discretion, and the use of force abroad without express congressional authorization. Maintaining that the widespread use of the completion power is a partial vindication of Chief Justice Vinson's neglected dissent in the Youngstown Steel Seizure case, this Essay argues that the completion power sheds light on a structural symmetry that cuts across Articles I, II, and III of the Constitution--namely, that each of the three branches has some degree of inherent power to carry into execution the powers conferred upon it. The Essay also examines normative questions about the scope and limits of the power.
Why (and When) Cities Have a Stake in Enforcing the Constitution
115 Yale L.J. 2218 (2006) This Essay examines independent constitutional interpretation from the bottom up. It focuses on San Francisco's recent challenge to the California ban against same-sex marriage and the judicial response it provoked in Lockyer v. City & County of San Francisco. The Essay argues against the conventional view that cities either have no distinctive role in interpreting the Constitution or that their interpretations should be considered suspect, even dangerous. But it also contends that cities should generally be permitted to decline to enforce state laws on constitutional grounds, or to challenge their constitutionality in court, only when they do so in order to expand the scope of local policymaking discretion. Thus, the Essay concludes that the problem with San Francisco's disregard of California's marriage laws was not (as the California Supreme Court suggested in Lockyer) that its action was too localist, but rather that it was not localist enough. San Francisco was not seeking freedom from state law so that its officers could adopt a distinct, local marriage policy for San Franciscans. Instead, the city claimed that higher law required all local officers to grant, rather than deny, licenses to same-sex couples seeking to marry. Thus, while San Francisco may have seemed to strike a blow for city power when it took the Constitution into its own hands, a deeper consideration of the controversy suggests that advocates of decentralization should have little reason to cheer the city's actions.
Civil Rights Litigation and Social Reform
[Editor's Note: Civil Rights Litigation and Social Reform is a Response to Kenneth W. Mack, The Myth of Brown?, Yale L.J. (The Pocket Part), Nov. 2005, http://www.thepocketpart.org/2005/11/mack.html.]